02 January 2016

At this stage of the negotiations it's clear that there are two controversial areas: investor-state dispute settlement, and transparency. I've discussed ISDS extensively in the previous updates, so here I'd like to look more closely at transparency - or rather its absence.

As I mentioned in my previous update, the fact that that US Trade Representative felt compelled to release a document that it called "U.S. Objectives, U.S. Benefits In the Transatlantic Trade and Investment Partnership: A Detailed View" is a sign that it knows full well that the talks so far have been almost totally devoid of transparency: the document is a sop - nothing more - to the crescendo of voices calling for real openness. After all, had transparency been something that the USTR truly cared about, it would have released the document as soon as the TTIP negotiations began, not some arbitrary number of months later.

Further proof that the US and European Commission are under pressure is a new document from the latter entitled "Towards an EU-US trade deal: Making trade work for you" with the subhead "We're listening and engaging" [.pdf]. And if you were wondering who "you" is, here's a clue:

We know we'll only get the best deal - one that benefits as many Europeans as possible - if we involve everyone with a stake in the outcome, at every stage. That's why we're consulting the public.

The rest of the four-page document is essentially geared to trying to demonstrate that fact. Here, for example:

1. Consulting and updating the public

We're using the web to get a clearer idea of the wider public's wishes and concerns."

Great. So how might the European Commission be doing that?

Before the talks started we held three online consultations to better understand the measures people want us to take to boost EU-US trade and investment.

Well, that's impressive, no? Just one small problem. Even though I follow trade deals pretty closely - indeed, I sometime think I'm the only person reading some of these documents apart from those drafting them and their mothers - I didn't take part in any of those consultations. Not, as you might imagine, because I didn't think they were important, or that I wanted to keep my views secret, but for the simple reason that I never heard about them. Any of them. And I would humbly like to submit that if I didn't get to hear about them, not many members of the public did either (indeed, I'd really like to hear from any readers that did know about any of these three consultations.)

I've now managed to track down some of those consultations. For example, according to the results of one held in 2012, a total of 114 submissions were made, of which precisely 8 came from citizens. Another consultation from earlier that year received 48 submissions, of which two look as if they might be from the public. That's transparency?

Of course, for the next TTIP consultation, things are likely to be very different, because we all know it's coming, and are keen to take part:

A fourth consultation asks for the public's views on our draft ideas on protect ing investors . These include improvements to a system known as investor - state dispute settlement, or ISDS, which dates back over 30 years.

There are (at least) three interesting things about that short statement. First, the complete non-sequitur that ISDS dates back over 30 years. As I've discussed at length, the point is that ISDS has never existed between the US and European Union, and yet despite that fact, the US has invested 1.3 trillion euros in Europe, and Europe 1.4 trillion euros in the US, so the absence of ISDS doesn't seem to have deterred investors that much.

The second point is that the consultation will be about "protecting investors" - not, as you might hope, about protecting the public, who are the main ones threatened by the ability of corporations to sue entire nations under ISDS, with the taxpayer footing the billing when the companies win. No, we're only being asked about how to protect those defenceless international investors.

Finally, we have flagged up here the fact that the public will be asked for comments to "improvements" the system, which suggests that we will not be given the option to reject the idea completely. Instead, I suspect, the questions will be framed largely in terms of "do you think the improvements are, er, improvements." We shall see - this consultation is rumoured to be coming out later this week.

This section on "Consulting and updating the public" concludes:

We also post regular updates on our dedicated webpages and on Twitter . And we regularly brief the press.

That's good, but is purely about "updating the public": the striking thing is that the only "consulting" going on in this section was from those mysteriously invisible three consultations that very few members of the public responded to. So as evidence of "transparency" I think we can call this section a failure.

Other sections try to convince us that talking to the governments of the 28 member states, to MEPs, and to some "TTIP Advisory Group" somehow counts as transparency, but of course it doesn't. It keeps the information in the same restricted circles it's always been in (and even then, we know that very little useful information is passed on to MEPs, say.) Section 4 "Hearing from other interest groups" - recognises there are others involved:

We want to hear from everyone with a stake in this agreement.

We regularly meet people from firms large and small, and from industry bodies. This is, after all, a deal about the mechanics of doing business. So we need their input.

That's absolutely true - and nobody said they shouldn't provide it. But the other side of the coin is that this is a deal about the everyday lives of 500 million Europeans, and so we need *their* input. Here's how the Commission thinks it is getting it:

But we also listen to people from:

consumer associationstrades unionsenvironmental groups and other NGOs

In addition:

Since 2012, we've held seven meetings in Brussels - each time with hundreds of people.

Well, yes, but unfortunately it tends to be hundreds of people from companies. For example, back in January, the European Commission organised what it called an "Outreach" session in Brussels. It sounded promising:

As part of an ongoing commitment to transparency, DG TRADE is organising a second Civil Society Dialogue to discuss progress and to exchange views on the TTIP.

Well, that's great - except for one tiny detail: out of the 196 entities registered as taking part, only about 30 were from civil society: the rest were - you guessed it - from companies and their lobbying organisations. In other words, wherever you turn, it is always business that has the loudest voice, and has most of the Commission's attention. Civil society - never mind the actual public - barely gets a look in.

The final hope for some transparency is the sharing of documents, covered in section 5 of the new text:

We aim to share as many documents as possible - not just with governments and MEPs, but also with out panel and the public.

Hooray - the public gets a mention.

In fact we've published more than 50 documents online, including:

factsheets and FAQspress releases and memosstudies and meeting reports

Well, I'm sorry, you can't claim things like factsheets, FAQs and press releases as examples of transparency: they are created purely for the purpose of being distributed. What we want are the key documents that are being used for the negotiations.

In any negotiation, partners need to build trust. For that they need a degree of confidentiality.

So there are some text we can only show to governments and MEPs - like our offers to the US to:

cut tariffs on goods they export to us open our services markets to their firms.

While it is true those details need to be kept secret before the negotiations, once thay have been laid on the negotiating table for the US to see and discuss, they are no longer secret by definition, and thus can be published, since they would reveal nothing to the US that is not already known. So by the European Commission's own arguments, tabled documents could be made available to the public in whose name they are being negotiated.

As the above makes plain, the Commission's claims for transparency are pretty weak. That's evident from its parting shot:

But at the end of the process, the whole deal will be open to scrutiny in any case.

And the final decision comes with a double democratic guarantee. Only a majority of both EU governments and MEPs can approve an agreement.

This is just an insult to our intelligence. There is no meaningful "scrutiny" at the end of the process, because nothing - zero - can be changed at this point. Instead, it's a "take it or leave it" decision that will be offered to the European Parliament. And we know exactly how the conversation will go: "yes, there may be things you absolutely hate in there, but you've *got* to accept it otherwise you will be personally responsible for throwing away all those jobs..." - moral blackmail in other words. Of course, as I've shown elsewhere, that's not even true - the European Commission's own figures show that the extra annual GDP that TTIP would produce in the most optimistic case is just 0.05% - statistically indistinguishable from zero.

But the European Commission won't let a little thing like facts get in the way; which is precisely why it refuses to allow any real transparency for TTIP. That would show all-too clearly that is the transnational corporations that benefit, and that the majority of their gains - 80% according to the Commission's own predictions - come from cost-cutting made possible by deregulation through the elimination of "non-tariff barriers" - health and safety standards, environmental regulation and the like. And no amount of re-assuring four-page documents with key words printed in bold for easy consumption will change that.

About Me

I have been a technology journalist and consultant for 30 years, covering
the Internet since March 1994, and the free software world since 1995.

One early feature I wrote was for Wired in 1997:
The Greatest OS that (N)ever Was.
My most recent books are Rebel Code: Linux and the Open Source Revolution, and Digital Code of Life: How Bioinformatics is Revolutionizing Science, Medicine and Business.